Thursday, March 31, 2011

A federal judge in the Middle District of North Carolina has allowed civil lawsuits by Duke lacrosse players wrongly accused of rape to move forward.

In the first case, Evans et al. v. City of Durham et al., for which the 98-page opinion is embedded below, the court granted in part and denied in part motions to dismiss. This case appears to involve the players criminally charged who settled with Duke, so the university is not a party.

While it will take a while to analyze the opinion, this part jumped out at me (pp 49-50):

"Having considered Plaintiffs’ contentions in the present case with respect to the City, the Court concludes that Plaintiffs have sufficiently stated a claim for Monell liability against the City at this stage in the case. Specifically, the Court concludes that Plaintiffs have alleged that the City had a policy of targeting Duke students that led to multiple constitutional violations against Duke students, particularly by Gottlieb, and that the City through its final policymaking officials nevertheless continued the policy and ratified and condoned those violations. Plaintiffs have stated a plausible claim that this condoning of constitutional violations in the enforcement of the policy led to the constitutional violations and injuries alleged by Plaintiffs in the present case.[11 Whether evidence exists to support this contention is not a question before the Court on the present motions. Of course, at later stages in the case, Plaintiffs will be required to present evidence to support these contentions, including evidence to establish the existence of an official policy or custom, and proof that the policy was the cause of the constitutional violation and injuries alleged here."

In the second case, McFaydyen et al v. Duke University et al., the court, in a 223 page opinion (copy here), the court allowed claims by three other players to move forward towards trial. In a third case, Carrington v. Duke University et al., involving even more players, a similar opinion was entered.

These second two cases which the judge noted were related to each other and the first case, but not consolidated, also involve claims against Duke and numerous of it employees, as well as various police officials.

What this means is the the plaintiffs in all cases, comprising numerous the players, now will get to take depositions, subpeona evidence and otherwise find out precisely what went on in the City of Durham and at Duke which led to their almost being railroaded.

Because all those headline and story writers are comparing the Harvard poll in question to last fall, but Obama's approval remains below where it was in November 2009 and far below where it was in 2008.

Look at the chart below from the Harvard poll. It shows increases in approval for everyone, including Republicans and Democrats in Congress. Here is the chart from the executive summary of the poll:

The Yutes is simply happier these days than a few months ago.

But it doesn't stop there. Neither the headline-making report nor other Harvard poll reports that I could find measure attitudes towards Obama going back to the fall of 2008. But other surveys indicate Obama won the youth vote by far larger measures.

While the two data sets (job approval ratings versus actual vote) may not be identical, it is informative that Obama won the youth vote overwhelmingly in 2008:

Young voters [18-29] preferred Obama over John McCain by 68 percent to 30 percent — the highest share of the youth vote obtained by any candidate since exit polls began reporting results by age in 1976, according to CIRCLE, a non-partisan organization that promotes research on the political engagement of Americans between ages 15 and 25.

Compare that number to the number who now say, in the current Harvard poll, they will vote for Obama over a generic Republican opponent:

Obama's support among young voters has dropped from 68% who voted for him in 2008 to 38% who now say they will vote for him now ("unsure" was not on the ballot in 2008, so it's hard to account for that, but clearly Obamamania among the youths has dropped).

So there we have it. Everyone is rising in approval ratings of young voters since last fall, and Obama's support among young voters remains far below fall 2008 and even below fall 2009.

But what do we get in the headlines? The same thing we got in 2008, Obamamania.

Over at Mises.org, Ben O'Neill has a great post about "discrimination" in the modeling industry. Recently, a model of Indian-descent in Australia tried to make the case that she was being unfairly discriminated on the basis of her race.

"One might feel a bit sorry for Ms. Rajandran. One might, that is, until one realizes that although she is the subject of adverse discrimination in this present instance, she is also the beneficiary of many other forms of discrimination, of a very similar kind. In fact, her entire career, and her entire qualification as a model, depends on forms of discrimination that are exactly as arbitrary and superficial as the race discrimination she is now facing.

This moral similarity between race discrimination and other kinds of discrimination is quite interesting. In his writings on discrimination, Professor Walter Block exposes the absurdity of attempts to forcibly equalize representation in different occupations and activities amongst demographic groups, saying,

Even if such a policy were possible to administer fairly, which it is not, even if it did some good, which it does not, it is always open to the charge of hypocrisy, for there is no difference in principle between the characteristics which are presently protected (race, gender, nationality) and those that are not (height, weight, intelligence, beauty). And further, the characteristics we have so far considered are only the tip of the iceberg of those upon which people discriminate."

The post takes a totally ridiculous claim and really examines it to a logical progression. I thoroughly enjoyed it. I wonder, though, if this will prompt subsidized modeling agencies in Australia. And why stop at Indian-Australians? Why not help out ugly Australian women? Aren't they discriminated against in the modeling world too?

Washington, D.C. is shocked to find that AARP may have had a financial incentive to push Obamacare:

"The report also details the Democrats’ health care law’s significant cuts to Medicare Advantage (MA) and how the interplay in the marketplace between MA and Medigap will increase Medigap sales. This will have a direct, significant, and positive impact on future profits at AARP. Also troubling is the report’s central finding: The Democrats’ health care law, which AARP strongly endorsed, could result in a windfall for AARP that exceeds over $1 billion during the next 10 years."

The role of AARP in supporting Democratic party proposals has received some attention, but not nearly enough. AARP presents itself as a neutral organization interested in the welfare of seniors, but in fact, AARP has extensive financial interests in promoting its affiliate insurance plans.

ARP only nominally is a senior citizen interest group. In fact, it is a product-selling machine, and among the many products it offers through marketing deals are insurance plans. Much like Consumers Union, which has shilled for the Democratic Party's proposals, AARP is a financial conglomerate which misuses its purported non-partisan stature to its own financial benefit.

The AARP and AMA statements are political statements, divorced from any reality as to what is in these bills. The AARP and AMA have made Democratic friends on Capitol Hill, but at the cost of selling out their own members and the American people.

Congratulations Senior Citizens. Your self-appointed advocate, AARP, has intervened again in favor of Democratic health care restructuring proposals ... In the meantime, read my prior posts on the insidious roles played by tax-exempt organizations, such as AARP and Consumers Union, in raising taxes on the rest of us.

If Gabrielle Giffords (D-AZ) recovers dramatically from her gunshot wounds, she would be a formidable candidate to run for the Senate seat being vacated by Jon Kyl. Giffords would have been a contender for the Democratic nomination even without the shooting, but the groundswell of sympathy would make her viable to win.

I hope her recovery is as miraculous as her surviving the shooting.

But her supporters and campaign will have to make the case for her apart from the shooting. I don't think sympathy alone would be enough, which is why this strategy would not work, in my estimation:

"Representative Gabrielle Giffords is still in the hospital, but some of her most ardent backers are so enamored of the idea of her running for the Senate that they describe the inevitable campaign commercials: the deep-voiced narrator recounting what happened to her, the images of her wounded, then recovering and speaking into the camera alongside her astronaut husband to call on Arizonans to unite."

Judge Maryann Sumi has issued this morning a two-page ruling saying the budget repair bill is not in effect. Via JSOnline:

A state law to sharply curb union bargaining by public employees is not in effect, a Dane County judge ruled Thursday, continuing the turmoil over a measure that sparked massive protests and prompted Democrats to boycott the Senate for three weeks

"Based on the briefs of counsel, the uncontroverted testimony, and the evidence received at the March 29, 2011 evidentiary hearing, it is hereby DECLARED that 2011 Wisconsin Act 10 has not been published within the meaning of (state statutes), and is therefore not in effect," Dane County Circuit Judge Maryann Sumi ruled in a two-paragraph order.

This decision, without any reasoning, puts in context the warning Judge Sumi issued yesterday to attorneys in the case about making remarks which impugn her integrity. Presumably Judge Sumi knew that this Order would be coming the next day, and also knew the political firestorm that would result.

Before speaking publicly about what is an extraordinary judicial interference in the legislative process, attorneys for the State will have to consider the import of Judge Sumi's warning.

Updates: I find it very curious that Judge Sumi felt the need to issue this Order today, when further hearings are scheduled tomorrow.

As Ed Morrissey notes, this is the third version of the TRO in this case.

And, keep in mind that at the end of the day Tuesday, Judge Sumi refused to sign an order containing virtually identical lanauge regarding whether the law was in effect:

So how, with no new evidence, does she reach the legal conclusion that the law was not published?

Perhaps it's just the passage of time to reflect on the issue, or perhaps it was frustration with what she saw as non-compliance with the first part of the order directing the Secretary of State not to publish and (some unspecified persons) not to implement the bill. If it were the latter reason, then achieving compliance as to implementation would not require a finding of non-publication.

I have written numerous times about John J. "Jack" McConnell, Jr., who has been nominated to the federal District Court in Rhode Island. The nomination was one of a handful on which Republicans drew a line in the sand last year, along with Goodwin Liu.

By way of background, McConnell was the first nominee to a District Court ever opposed by the U.S. Chamber of Commerce. Ever, which should tell you something.

McConnell made a name for himself and a fortune -- including payouts for another decade -- from tobacco litigation. McConnell also almost made a name for himself in lead paint litigation in Rhode Island, until the Rhode Island Supreme Court threw out the novel legal theory upon which McConnell prevailed in the trial court.

The issue with McConnell for the Chamber is his aggressive plaintiff's background, but that is not the most serious issue in my estimation. More serious is the fact that McConnell has been the largest campaign donor ever nominated to the federal bench, having contributed over $700,000 to Democrats (including Sheldon Whitehouse, who nominated him) in recent years. Considering McConnell received only mediocre ratings by the American Bar Association, this gives the appearance of McConnell having bought his way into a lifetime federal judgeship.

Additionally, a Rhode Island think tank, the Ocean State Policy Research Institute (OSPRI) has requested documents regarding the settlement of the lead paint litigation, which raise questions as to whether McConnell or his firm made misrepresentations to the court and the parties. The litigation was settled by one of the defendants (prior to the Supreme Court throwing the case out) with the proviso that McConnell's firm not earn an attorneys fee. McConnell agreed to this deal, and instead proposed a donation in lieu of fee to a hospital in Massachusetts. It turned out, however, that the hospital credited the donation towards a pledge made by McConnell's firm -- so this arguably was a surreptitious way for McConnell's firm to earn a fee while representing to everyone it was not earning a fee.

Questions regarding the lead paint litigation settlement never have been answered fully, and neither McConnell's firm nor other participants in the litigation (including the State of Rhode Island) never have produced the information requested by OSPRI. McConnell did answer written Senate questions about the settlement, in which he denied any wrongdoing, but OSPRI's request for documents had not been satisfied and there has been no ability to question McConnell in person and others involved as to whether others knew that the donation would be used to satisfy the law firm's pledge. Considering that this would be a lifetime appointment, these questions need to be answered.

There is a Judiciary Committee business meeting today in which there will be a vote on McConnell's nomination. McConnell has passed the Committee before, but a similar vote on Liu has been postponed.

Unfortunately, it remains unclear if McConnell's nomination can be stopped again this year. Unity among Republicans is key. The deciding vote may be Lindsey Graham, who voted for McConnell in committee last year, and who is unlikely to joint a filibuster; if Graham joined in a filibuster, Republicans would have the votes on a cloture motion.

Sheldon Whitehouse not so obliquely suggested that what goes around comes around, and questioned his colleagues as to how they want their district court nominees considered in the future. This is similar to Whitehouse's threat made last year during hearings.

Chuck Grassley made the point that McConnell was far more partisan than most nominees. "My concern is that Mr. McConnell is steeped in political activity and ideology...." Grassley noted comments in the past by McConnell attacking Republicans, including the statement when the Republican Governor kept state offices open during a snow storm that it was "typical of cold hearted Republican attitude of disregarding labor needs."

Grassley also made the point about the lead paint settlement discussed above, saying he was distrubed by "the way the facts have dribbled out and the spin that has been put out by McConnell."

I will try to get the transcript of Grassley's statement, it is a devastating indictment of McConnell's political and legal activities and how they relate to his fitness to be a judge.

Before wrapping up a brief hearing Wednesday, Dane County Circuit Judge Maryann Sumi offered a word of caution to attorneys involved in high-profile lawsuits over collective bargaining in Wisconsin.

Sumi said emotions are running high over two cases she is hearing regarding Gov. Scott Walker's plan to eliminate most collective bargaining for public workers. That "spirited debate" is important in a democracy, but attorneys must keep in mind their professional ethics, Sumi said.

"They all have a responsibility to promote and not denigrate the judicial branch and, more importantly, the rule of law," she said.

She advised lawyers to review state Supreme Court rules that say: "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge...."

She referred to public comments made by attorneys after a Tuesday hearing, but did not elaborate.

I have not seen any comments by attorneys in the case which rise to the level in the rule cited above. Attorneys are free to criticize the content of a ruling by a Judge, and as I have documented, there was plenty to criticize in the Judge Sumi's decision to interfere in the legislative process by attempting to prevent a bill from becoming law.

I find it disturbing that Judge Sumi issued this warning, which carries the threat of a Bar disciplinary referral. This is tantamount to the nuclear option, by putting attorney licenses to practice on the line.

Such a warning necessarily is one-sided, since only the attorneys unhappy with a court's rulings would comment negatively. Such a warning allows the winning side, so far the Democrats, to crow all day long about the court rulings, while muffling the ability of the Republicans to explain why such rulings were unjustified.

This is a highly political case which has been made even more political by the court's rulings. Absent comments which impugn Judge Sumi's integrity or make false statements about her, the attorneys in the case should be free to comment.

Last night, Keith Olbermann addressed his alma mater in a lecture auditorium. I wasn't in attendance for two reasons: 1. I still felt nauseous from seeing him the day before at a private reception for journalists (and whatever he is nowadays) and 2. it was more productive for me to study for my exam on Friday.

I figured that Olbermann would slam The Cornell Review, the conservative newspaper on campus where I serve as campus editor. However, I could not have anticipated the hissy fit that ensued. The Cornell Insider, our blog, has full coverage:

Insider favorite Keith Olbermann ’79 was at Bailey Hall tonight and, while he gave a talk that was, at times, ridiculous, funny, and (yes, I’ll admit it) pretty good, the real draw came in the question and answer section. The first questioner, an older gentleman who looked to be one of Ithaca’s crazy but lovable hippies, brought a copy of theFebruary 16th edition of, you guessed it, the Cornell Review. He was looking to bring Keith’s attention to the article on page two by a guest writer, Eco House basement cannabis enthusiast and sixth year senior Ephram Smith. Olbermann, who must have been overcome with joy by Ephram’s praise for who he called the “Edward R. Murrow of Our Time,” threw the newspaper on the stage and stomped on it while pouring his bottle of designer water (look out, Keith, those are banned here now!) all over the hallowed pages.

But after the Insider took to the microphone to question Keith on his contributions to New Tone 2.0 (full coverage of this issue and the rest of Olbermann’s visit can be found in the next edition of the Review), this not-so-intrepid journalist came out to Mr. Olbermann as someone who writes for “The Conservative Voice on Campus,” but is also a big fan of his. It’s not only the Cornell connection (we <3 all Cornell alumni, especially the ones that are smart enough to read the Insider), but also Keith’s commitment to undermining his more serious colleagues on the left by getting into childish feuds with his fellow cable news talking heads and spreading unfounded paranoia about anybody to the right of Howard Dean that endear him to the Insider.

The man Hillary Clinton described as a "reformer" (which she later tried to walk back), and on whom the Obama administration has pinned its hopes for peace in the Middle East, despite his having helped funnel insurgents into Iraq to kill American soldiers and Iraqi civilians, his arming of Hezbollah, and his service as Iran's gateway to the Mediterranean.

As reported by AP, the Reformer-in-Chief reacts to protests in Syria the way Amadinejad reacted to protests in Iran:

Syrian President Bashar Assad blamed "conspirators" Wednesday for an extraordinary wave of dissent against his authoritarian rule, but he failed to lift the country's despised emergency law or offer any concessions in his first speech since the protests began nearly two weeks ago.

Assad said Syria is facing "a major conspiracy" that aims to weaken this country of 23 million. The Assad family has ruled Syria for nearly 40 years, using the feared security services to monitor and control even the smallest rumblings of opposition. Draconian laws have all but eradicated civil liberties and political freedoms.

"We don't seek battles," Assad, 45, said in an unusually short, televised speech before legislators who cheered for him and shouted support from their seats. "But if a battle is imposed on us today, we welcome it."

He made only a passing reference to the protesters' calls for change, saying "we are for reform" and promising that certain measures were being studied. He did not elaborate.

Within minutes of his speech, social networking sites exploded with activists calling on Syrians to take to the streets.

When protesters took to the streets in Iran in June 2009, they were met with silence from the Obama administration, and then thrown overboard in pursuit of a grand bargain of encouraging cooperation from the Iranians on nuclear issues. It appears that the same thing is taking place in Syria.

There has been a lot of talk lately in the right-blogosphere about the importance of the upcoming Supreme Court election in Wisconsin, which is next week.

National unions and leftist groups have poured millions into attacking current Supreme Court Justice David Prosser, including a malicious advertisement accusing him of failing to properly investigate child abuse allegations 30 years ago. The victims in that case have come out against the ad and supported Prosser.

But the efforts in support of Prosser have been less than overwhelming. I never before have donated to Tea Party Express, but I am now because it is seeking to blanket the airwaves in Wisconsin this weekend with this excellent ad in support of Prosser:

We are buying every available airtime slot on Wisconsin TV - statewide - to run this ad. We need your help, urgently. With so little time we have to raise as much money as we can, so we can purchase this airtime for the TV ad. You can now donate to our Wisconsin State PAC.

Wisconsin supreme court justice David Prosser went to bed one night a respected former prosecutor, and woke up the next morning the target of a $3 million union-run smear campaign, falsely accused of being an enabler of pedophiles. That is what you get when you oppose the political machine that has been fleecing taxpayers in Wisconsin and elsewhere for a generation. Or, as in the case of Justice Prosser, when they suspect you might merely stand in their way and do your job.

And more shakedown letters are being circulated to businesses in Wisconsin (h/t @Iowahawk) via JSOnline:

Members of Wisconsin State Employees Union, AFSCME Council 24, have begun circulating letters to businesses in southeast Wisconsin, asking them to support workers’ rights by putting up a sign in their windows.

If businesses fail to comply, the letter says, “Failure to do so will leave us no choice but (to) do a public boycott of your business. And sorry, neutral means 'no' to those who work for the largest employer in the area and are union members."

A commenter using the pseudonym "Milwaukeean" has been active here for the past couple of weeks regarding the various court and other disputes in Wisconsin.

Milwaukeean didn't seem to cross the line from dissenter to troll, made some good points at times, and often argued against my position and the position of other readers. That's fine.

Unlike some blogs, we don't screen people out -- much less go back and delete their comment histories -- just because we disagree. If all you do is name calling, you will not be put through, but dissent is patriotic here.

But these sort of commenters always seem to end badly, in a flurry of name-calling and self-righteous indignation.

Amazing that what is described as a blog about the law argues for ignoring a state constitution and an order of the court, dismisses it as a "county court" -- do commenters on a legal blog really not understand the term "district court"? -- and more here that shows inability or unwillingness to actually consult the constitution and statutes.

Well, okay, I finally get it. I read that this was a thoughtful blog about the law, but someone was having fun. This really is a mock legal blog, a joke!

Sorry for taking this blog seriously. Go on back to your silliness and mockery of the law, while I go on to seek a serious legal blog. Thanks for the helpful list ranking such blogs, so that I can find the far better ones!

I realize that this will come as a complete shock to Milwaukeean, but we will survive without you.

Now go find someplace where you can preach to the choir, and where the choir will not question your views or challenge what you have to say. This is not such a place.

Tuesday, March 29, 2011

Media Matters, as part of its new "get Fox News" agenda, is spinning a tape of Bill Sammons of Fox News made in 2009 as reflecting dishonesty as to "mischievous speculation" in 2008 as to whether Obama had socialist tendencies. Needless to say, the left-blogsphere has reacted with glee.

But listen to the actual audio, and two things are clear.

First, the word "mischievous" was related to Sammons' use of the word just moments before related to James Carville. And it is not clear what was the "mischievous speculation" to which Sammons was referring. Sammons statement that he thought it was "far-fetched" is not a confession of lying, which is the Media Matters Spin. Sammons describes the language as "inartful" and that he was dealing with the issue because it was in the news.

Second, and this is the part Media Matters doesn't highlight, Sammons made a case for why he feels those concerns about Obama -- whether mischievous or not -- actually had come true.

“Now imagine my surprise when this year, I witness President Barack Obama standing in the cross hall of the White House and having taken over the American car industry, look into the camera, and announce to the nation essentially, that he would personally vouch for the warranty on your car’s muffler. All of a sudden, the debate over whether America was heading for socialism seemed anything but far-fetched…The debate over whether America is headed for socialism seems all too real, especially to those who still believe in capitalism."

Based on reports from inside Judge Sumi's courtroom, it appears that she has issued an expanded TRO ruling that the budget bill is not in effect and was not "published" as required, and enjoins further implementation.

Correction: Per local news reporter, initial reports that Judge found law not in effect were not correct. But TRO continues to prohibit Secretary of State from publishing, so it appears she is viewing the bill as not in effect yet, even if she did not explicitly rule.

A Dane County judge Tuesday blocked the state from implementing Gov. Scott Walker's collective bargaining bill.

"Further implementation of the act is enjoined," said Dane County Judge Maryann Sumi.

She noted her original restraining order issued earlier this month was clear in saying that the state should not proceed with implementing the law. The Walker administration did so after the bill was published Friday by a state agency not included in Sumi's earlier temporary restraining order.

"Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear," she said.

She noted she has not yet found that lawmakers violated the open meetings law, but noted the Legislature could resolve the matter by passing the bill again.

The Amended TRO now is available. It is only two pages long, and apparently was prepared as to form by the Democrats (this is common in court cases that one side prepares the form of order), because Judge Sumi struck out the portion as to publication:

The man who introduced Sarkozy to the Benghazi rebels is none other than Bernard-Henri Lévy, a pop philosopher so French that I can't think of an American equivalent. We just don't have philosophers who wear their shirts unbuttoned, marry blond actresses, and take sides, enthusiastically, in wars in Bangladesh, Angola, Rwanda, Bosnia, and beyond. By siding with Lévy's emotional plea for humanitarian intervention—a decision that surprised even his own foreign minister—Sarkozy apparently thinks he might share some of the philosopher's glamour.

Sarkozy clearly hopes the Libyan adventure will make him popular, too. Nobody finds this surprising. At a conference in Brussels over the weekend, I watched a French participant boast of France's leading role in the Libyan air campaign. A minute later, he heartily agreed that the war was a ploy to help Sarkozy get re-elected. The two emotions—pride in French leadership and cynicism about Sarkozy's real motives—were not, it seems, mutually exclusive.

... had Sarkozy's primary aim been to expose the weakness and incoherence of European foreign policy, he could not have done so any more effectively... The Libyan affair "demonstrates the immaturity of European security and defense policy, the poverty of the political debate, and the inadequacy of personnel." No one thinks Europe is going to emerge from this affair any stronger, either, even if the French president does.

Nothing frustrates me more than people who assume that Sarkozy is like a French George Bush. If he were an American politician, he'd be clumped on the left. Don't get too excited, the only politician worth rooting for in the continent is Daniel Hannan and Applebaum's piece is a good reminder why.

Notice how Democrats have been talking lately about how Republicans in Congress are held hostage by Tea Party-backed new members? And how for years Democrats have made sure to use the term "extremist" when referring to Tea Parties?

It's a pre-planned line of attack by the Democratic Causus, and one of the enforcers is Chuck Schumer (D-NY).

As reported by The NY Times, not realizing the call line already was active, Schumer instructed other Democratic Senators, shortly before a live conference call, to use that mode of attack, and also admitted he makes sure to use the word "extremist" whenever possible as instructed by the Democratic Caucus (emphasis mine):

Moments before a conference call with reporters was scheduled to get underway on Tuesday morning, apparently unaware that many of the reporters were already on the line, Charles Schumer of New York, the No. 3 Democrat in the Senate, began to instruct fellow senators on how to talk to reporters about the contentious budget process.

After thanking his colleagues — Barbara Boxer of California, Ben Cardin of Maryland, Tom Carper of Delaware and Richard Blumenthal of Connecticut — for doing the budget bidding for the Senate Democrats, who are facing off against the House Republicans over how spending for the rest of the fiscal year, Mr. Schumer told them to portray John Boehner of Ohio, the Speaker of the House, as painted into a box by the Tea Party, and to decry the spending cuts that he wants as extreme. “I always use the word extreme,” Mr. Schumer said, “That is what the caucus instructed me to use this week.”

A minute or two into the talking-points tutorial, though, someone apparently figured out that reporters were listening, and silence fell.

Then the conference call began in earnest, with the Democrats right on message.

I have suggested long ago and again that Mitt Romney's best strategy on Romneycare simply would be to admit it was a mistake, even though honest and serious distinctions could be drawn between Obamacare and Romneycare. He has not done that, and the political wound still festers.

Tim Pawlenty understands the power of apology. At one time he supported cap-and-trade, but now readily admits that position was a mistake. Via Politico:

"The question is in my case, I've said, 'Look, I've made a mistake.' I think cap-and-trade would be a ham-fisted, unhelpful, damaging thing to the economy," Pawlenty added. "It's misguided. I made the mistake. I admit it. I'm not trying to be cute about it. I just come out and tell you it was a mistake."

"In nearly every state across America, Governors are facing major budget deficits. Many, Democrat and Republican alike, are cutting state aid to schools and other local governments - which will force massive layoffs, massive property tax increases or both.

In Wisconsin, we are doing something progressive in the best sense of the word. We are implementing reforms to protect middle class jobs and middle class taxpayers. While our idea may be a bold political move it is a very modest request of our employees.

We are reforming the bargaining system so our state and local governments can ask employees to contribute 5.8% for pension and 12.6% for health insurance premiums. These reforms will help them balance their budgets. In total, our reforms save local governments more than $700 million each year.

Most workers outside of government would love our proposal. Over the past several months, I have visited numerous factories and small businesses across Wisconsin. On these tours, workers tell me that they pay anywhere from 15% to 50% of their health insurance premium costs. The average middle class worker is paying more than 20% of his or her premium.

Even federal employees pay more than twice what we are asking state and local government workers to pay and most of them don’t have collective bargaining for wages or benefits. These facts beg the question as to why the protesters are in Wisconsin and not in Washington, D.C. By nearly any measure, our requests are quite reasonable.

Beyond helping to balance current and future budgets, our reforms will improve the quality of our governments. No longer will hiring and firing be done solely based on seniority and union contracts. Instead, schools - as well as state and local governments - will be able to make decisions based on merit and performance...."

Court proceedings in Madison before Judge Maryann Sumi center on whether the budget repair bill has become law. This is, as I posted before, a sideshow unnecessarily created by a TRO which interfered in the legislative process.

I'll be posting updates about the court proceedings in Wisconsin throughout the day, based on various news reports, in reverse chronological order (with commentary from time to time by me):

Per tweet,Sumi says bill not published. Clearly wrong, as discussed in prior posts. [see new post for details.]

Per tweet, Sumi says dismayed since an "easy" solution - revote and renotice.

As I suspected, the day was not done. Per tweet, Sumi enjoined further implementation of bill.

Not clear as day ended in court whether there would be modifications to the TRO to stop implementatino of the law. Per in-court tweets, session has ended, but some directive to attorneys to work on the form of Order.

Local TV station reports there will be no decision today, and hearings resume Friday. Per tweet, looks like done with witnesses, at least for the day, and Sumi now going to hear arguments on alterning the TRO. Not sure if this means she's expanding the scope.

Per tweet, looks like case will continue today, after State requested recess because legislators immune, but then will continue Friday. Does this mean two days off from hearings? Not clear.

Bob Lang, Director of Legislative Fiscal Bureau testifying about process by which bill was rewritten to take out fiscal matters and pass committee -- per tweet no single place in Capitol in which committees held.

After lunch break, per tweets, discussion of who can represent Sec. of State. Apparently new lawyer showed up and Judge expressed surprise that meeting client for first time. Well what did she expect, it was only a couple of hours ago that she told the State to get him a lawyer. Another example of how today's hearing has turned into a sideshow over whether the bill is law.

"Stephen Miller, who runs the bureau, said he called Deputy Attorney General Kevin St. John on Friday before publishing the law, after Senate Majority Leader Scott Fitzgerald (R-Juneau) suggested doing so.

Miller said he had independently concluded he had a duty to publish the law, and [Deputy Attorney General Kevin] St. John agreed with that....

Miller said he concluded he was required to publish the law, but he did not believe that it would go into effect until the secretary of state acted. Fitzgerald and the Department of Justice disagree, saying the law is now in effect because the bureau published the law."

ACLU Wisconsin also live tweeting - while much will be made of the fact that LRB was asked to publish the bill, I don't think that makes any legal difference. The issue is whether publication was effective, not why they did it. Per tweet, head of LRB says that comfortable that publishing was correct:

Jessica Arp, a local TV reporter, is live tweeting the hearings. She notes at approx. 11:20 a.m. (CT):Wisconsin State Journal - Appeals court denies request of Attorney General to withdraw appeal on ground law has come into effect already.

For those keeping score at home, we haven't even touched the open meetings issue yet today. Only publication procedure from last week.

JSOnline - Testimony by a witness from the Legislative Reference Bureau (LRB) to the effect that the LRB was directed by Scott Fitzgerald, the Republican Senate leader, to publish the budget repair bill.

JSOnline - Judge Sumi ordered the State to get a separate attorney for the Secretary of State, since the Dept. of Justice position on the law (that it was in effect) differed from the position of the Sec. of State.

JSOnline - hearings today before Judge Sumi to continue on the issue of whether the budget repair bill has become law.

I previously have highlighted the dire finances of the City of Providence, which issued termination notices to all teachers in the school district as a precautionary measure.

But please don't think teacher salaries and benefits are the only problem. GoLocal Prov (h/t Hummel Report) has published a list of the Top 25 highest paid employees of the City of Providence, and the top ranks are dominated by police and firefighters.

These numbers include overtime and "recall" pay, which in many cases doubles the base salary, and in some cases, retroactive pay increases. The numbers also include for police so-called "detail" pay, which essentially is what police get paid for standing next to construction road work, and some of that is paid by the contractors to the City, which then paid the officers, but there was no way to ascertain how much was such pass-through dollars. The figures do not include the cost of benefits.

Nonetheless, these numbers demonstrate that City of Providence employees, particularly the police and firefighters, are very highly compensated.

In TaxProf's rankings of law professor blogs for the 12 months ending December 31, 2010, based on page views and visits, as calculated by publically available Sitemeters. (Footnote, we really should be no. 5, but Instapundit not longer has a public Sitemeter, so it no longer is in the rankings.)

I note this only for those of you who follow such things. Personally, it means nothing to me, because ... um, because ... (someone help me here) ...

Monday, March 28, 2011

"Did you say Iran, sorry I didn't hear you, what was that, we can't dictate the terms of change for others, except when we do, and did, but only with a coalition, My Fellow Americans, Bush bad in Iraq, me good in Libya, because I did not declare war in that country, Libya."

Guess what? The Legislative Reference Bureau published the Wisconsin budget repair bill Friday, and as the law provides, the Governor is taking the position the law is in effect.

And he's stopped withholding union dues as of today, even though there are more court hearings tomorrow. From JSOnline:

Gov. Scott Walker's administration is no longer collecting dues on behalf of state unions and as of Sunday began charging employees more for health care and their pensions, even though nonpartisan legislative attorneys say the changes are not yet law.

Administration Secretary Mike Huebsch said Monday administration attorneys have determined the law is now in effect. State workers will receive paychecks April 21 that reflect the changes, he said in a conference call with reporters.

In addition to requiring state, local and school employees to pay more for their benefits, the measure ends most collective bargaining for public workers. The law also bars the state from charging dues to employees and passing them on to unions, as it has done for years.

Critics of Gov. Walker's move cite an opinion from the Legislative Council, essentially the staff attorneys at the Wisconsin legislature, who opine that the bill has not yet become law.

As pointed out by Kevin Binversie at Lakeshore Laments, it is quite ironic for opponents of the bill to rely on the opinions of the Legislative Council, since it was the Legislative Council which also opined that the actions of the Republican state Senators in passing the bill complied with Senate Rules.

If the Legislative Council was right that the bill passage complied with Senate Rules, and since legislative Rules trump the Open Meetings Law, then the bill should survive court challenges and there should be no injunction, temporary or otherwise.

Tomorrow will be interesting, as Judge Sumi grapples with the mess created by a precipitous Temporary Restraining Order.

With the law now in effect and paychecks getting an increase since union dues are not being withheld, Democrats are the party arguing for a reduction in state worker paychecks.

Update 3-29-2011- I'll be posting updates on the court proceedings in Wisconsin throughout the day.

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